No. 750.
Mr. Williams, to Mr. Fish.
Washington , December 17, 1873. (Received December 17.)
Sir: I have the honor to acknowledge the receipt of your letter of the 11th instant, submitting to me a large number ofdocuments and [Page 1114] depositions, and asking for my opinion as to whether or not the Virginius, at the time of her capture by the Spanish man-of-war Tornado, was entitled to carry the flag of the United States, and whether or not she was carrying it improperly and without right at that time.
This question arises under the protocol of the 29th ultimo, between the | Spanish minister and the Secretary of State, in which, among other things, it is agreed that on the 25th instant Spain shall salute the flag of the United States. But it is farther provided that” if Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it, at the time of her capture, without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable; but the United States will expect, in such a case, a disclaimer of the intent of indignity to its flag in the act which was committed.”
Section 1 of the act of December 31, 1792, provides that ships or vessels registered pursuant to such act, “and no other, (except such as shall be duly qualified according to law for carrying on the coasting-trade and fisheries, or one of them,) shall be denominated and deemed ships or vessels of the United States, entitled to the benefits and privileges appertaining to such ships.” Section 4 of the same act provides for an oath, by which, among other things, to obtain the registry of a vessel, the owner is required to swear “that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested in such ship or vessel, or in the profits or issues thereof.”
Obviously, therefore, no vessel in which a foreigner is directly or indirectly interested is entitled to a United States registry, and if one is obtained by a false oath as to that point, and the fact is that the vessel is owned, or partly owned, by foreigners, she cannot be deemed a vessel of the United States, or entitled to the benefits or privileges appertaining to such vessels.
The Virginius was registered in New York on the 26th of September, 1870, in the name of Patterson, who made oath as required by law, but the depositions submitted abundantly show that, in fact, Patterson was not the owner at that time, but that the vessel was the property of certain Cuban citizens in New York, who furnished the necessary funds for her purchase. J. E. Shepperd, who commanded said vessel when she left New York with a certificate of her register in the name of Patterson, testifies positively that he entered into an agreement to command said vessel at an interview between Quesada, Mora, Patterson, and others, at which it was distinctly understood that the Virginius belonged to Quesada, Mora, and other Cubans, and that said Mora exhibited to him receipts for the purchase-money and for the repairs and supplies upon said steamer, and explained to him how said funds were raised among the Cubans in New York. Adolpho De Yarona, who was the secretary of the Cuban mission in New York at the time the Virginius was purchased, and afterward sailed in her as Quesada’s chief of staff, testifies that he was acquainted with all the details of the transaction, and knows that the Virginius was purchased with the funds of the Cubans, and with the understanding and arrangement that Patterson should appear as the nominal owner, because foreigners could not obtain a United States register for the vessel. Francis Bowen, Charles Smith, Edward Greenwood, John McCann, Matthew Murphy, Ambrose Bawlings, Thomas Gallagher, John Furlong, Thomas Anderson, and George W. Miller, who were employed upon the Virginius in various capacities [Page 1115] after she was registered in the name of Patterson, testify clearly to the effect that they were informed and understood while they were upon the vessel that she belonged to Quesada and the Cubans represented by him, and that he navigated, controlled, and treated said vessel in all respects as though it was his property.
Nothing appears to weaken the force of this testimony, though the witnesses were generally subjected to cross-examination; but, on the contrary, all the circumstances of the case tend to its corroboration. With the oath for registry the statute requires a bond to be given, signed by the owner, captain, and one or more sureties; but there were no sureties, upon the bond given by Patterson and Shepperd. Pains have been taken to ascertain if there was any insurance upon the vessel, but nothing of the kind has been found, and Quesada, Varona, and the other Cubans who took passage upon the Virginius, instead of going on board at the wharf in the usual way, went aboard off a tug after the vessel had left the harbor of New York. I cannotdo otherwise than to hold upon this evidence that Patterson’s oath was false, and that the register obtained in his name was a fraud upon the navigation laws of the United States.
Assuming the question to be what appears to conform to the intent of the protocol, whether or not the Virginius, at the time of her capture, had a right, as against the United States, to carry the American flag, I am of the opinion that she had no such right, because she had not been registered according to law, but I am also of the opinion that she was as much exempt from interference on the high seas by another power, on that ground, as though she had been lawfully registered. Spain, nodoubt, has a right to capture a vessel, with an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her ter-’ ritory and people from the hostile attacks of what is, or appears to be, an American vessel; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States. Spain cannot rightfully raise that question as to the Virginius, but the United States may, and, as I understand the protocol, they have agreed todo it, and, governed by that agreement and without admitting that Spain would otherwise have any interest in the question, I decide that the Virginius, at the time of her capture, was without right, and improperly, carrying the American flag.
Very respectfully,